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MASTER SERVICE AGREEMENT
By utilizing Zenlayer Services, You, Customer, and End Users of Services (“Customer”) agree to abide by the terms and conditions set forth under this Terms and Conditions/Master Service Agreement (“Terms” or “Agreement”) and to comply with the applicable laws and regulations. If you have questions or disagree with the Terms, please do not submit the order through Zenlayer Portal and do not use Zenlayer Services, and contact our Sales team immediately at firstname.lastname@example.org. Customer and Zenlayer hereinafter each referred to collectively as the “Parties” or individually as a “Party”.
This Agreement is entered into and effective as of the date Customer submits and Zenlayer accepts the sales order, or Zenlayer provides the Services defined by the Customer (“Effective Date”).
Zenlayer is engaged directly or through its Affiliates in the business of providing Services (defined below). Customer wants to purchase Services from Zenlayer.
Therefore, the parties agree as follows:
1. DEFINITIONS. Capitalized terms used in this Agreement shall have the meanings assigned to them hereunder, or as defined in the relevant clauses of this Agreement:
1.1. “Acceptance Period” shall mean the period of time in which Customer has to perform tests on the Services. The duration of the Acceptance Period is unique for each Service. Each individual Acceptance Period can be found in the appendix for the appropriate Service and shall be incorporated to this Agreement as if fully rewritten herein.
1.2. “Additional Usage” shall mean any of Customer’s actual usage that exceeds the Minimum Commitment.
1.3. “Affiliate” shall mean any person or entity that directly or indirectly, through one or more intermediaries, controls, is controlled by, or under common control with such party. As used herein, “control” shall mean the ownership of more than 50% of the outstanding shares or equivalent interest entitled to vote.
1.4. “Authorized Employees” means either Party’s employees who have a need to know or otherwise access to Confidential Information to enable that Party to perform its obligations under this Agreement.
1.5. “Authorized Person” shall mean all (i) authorized Employees; and (ii) Service Providers who have a need to know or otherwise access Confidential Information to enable either Party to perform their obligations under this Agreement, and are bound in writing by confidentiality obligations sufficient to protect Confidential Information in accordance with the terms and conditions of this Agreement.
1.6. “Charge” shall mean the invoiced amount to Customer for the Services provided by Zenlayer.
1.7. “Charge Increase” shall mean Zenlayer’s reservation of right to increase the charge of Customer’s Service after the expiration of each Service Term.
1.8. “Confidential Information” shall mean this Agreement and all confidential information of any type and form provided by the Discloser to the Recipient that is designated or identified as “Confidential” or “Proprietary” or similar marking or would reasonably be regarded as being of confidential nature. Confidential Information shall include without limitation, information concerning business models and strategies, network design and traffic, Service performance, customers, the business, financial affairs, pricing, products, and requirement of the Discloser. The term “Confidential Information” shall not include information that: (i) was in Recipient’s possession before receipt from Discloser; (ii) is independently developed by or for Recipient without reference to Discloser’s Confidential Information; (iii) is rightfully received by Recipient from a third party without a duty of confidentiality; or (iv) is or becomes available to the public through no fault of Recipient.
1.9. “Customer” shall mean customer as described above in the first paragraph of this Agreement, Customer’s authorized end-users as described in Section 3.2 of this Agreement, or any other Zenlayer-authorized third parties appointed by Customer for the purpose of utilizing Customer’s Services.
1.10. “Discloser” shall mean the disclosing party of any and all confidential information of any type and form for the purposes of performing obligations under this Agreement.
1.11. “Disputed Amount” shall mean any good faith dispute by Customer to any amount in an invoice pursuant in Section 5.1 of this Agreement.
1.12. “Dispute Date” shall mean the date no later than ten (10) calendar days after the invoice date in which Customer shall notify Zenlayer of any invoice disputes they have regarding said invoice as pursuant to Section 5.1 of this Agreement.
1.13. “Due Date” shall mean the expiration of a period of thirty (30) days from the day the invoice is sent to the Customer in which the payment for that invoice is due to Zenlayer.
1.14. “End User” shall mean any third-party appointed by Customer to be the end-user of the Services and authorized by Zenlayer pursuant to Section 3.2 of this Agreement.
1.15. “Invoice Dispute Notice” shall mean Customer’s written notice to Zenlayer with a detailed explanation of their Disputed Amounts on their invoice.
1.16. “Minimum Commitment” shall mean any Services priced on a Monthly Minimum Commitment basis.
1.17. “Notice of Increase” shall mean Zenlayer’s sixty (60) days prior written notice to Customer of the Charge Increase.
1.18. “Recipient” shall mean the receiving party of any and all confidential information of any type and form from Discloser for the purpose of performing obligations under this Agreement.
1.19. “Services” shall mean services offered by Zenlayer including but not limited to Zenlayer Bare Metal Cloud, Zenlayer Cloud WAN, Zenlayer Edge Computing Network, Zenlayer Edge Data Center services, Zenlayer IP Transit, and Zenlayer Cloud Networking.
1.20. “Service Delivery Date” shall mean the date Zenlayer delivers the Services to Customer for Delivery Confirmation.
1.21. “Service Activation Date” shall mean the date Customer accepts the Service delivered by Zenlayer or its Affiliate, or two (2) days after the Service Delivery Date, whichever comes first, as described under Section 2.3.
1.22. “Service Activation Notice” or “SAN” shall mean the notice given by Zenlayer to Customer signifying the start of the Service billing cycle.
1.23. “Service Level Agreement” or “SLA” shall mean the Service Level Agreement annexed hereto together with all schedules to the SLA.
1.24. “Service Order Form” or “SOF” shall mean the order form by which all Services shall be ordered by Customer and Zenlayer has agreed to provide under this Agreement. The SOF will indicate the specific Service requested by Customer and information reasonably necessary for Zenlayer to provide that Service, including but not limited to the Service Activation Date, the Initial Term, as defined below, and the associated fees.
1.25. “Service Outage” shall mean the Service is unavailable, as defined in the respective SLA.
1.26. “SOF Initial Term” shall mean the period of time set forth in the Service Order Form, or if no term period is specified in the applicable Service Order Form, then the Initial Term shall be one (1) year.
1.27. “SOF Renewal Term” shall mean automatic renewal of the Services pursuant to the SOF for successive one (1) year periods upon expiration of the SOF Initial Term or subsequent SOF Renewal Term.
1.28. “Taxes” shall mean all taxes, including but not limited to, withholdings, property taxes, user taxes, duties, sales taxes, and fees that arise in any jurisdiction impose on or incident to the provision, sales, or use of Services.
1.29. “Term” shall mean either the Initial Term or any subsequent Renewal Term of the Services, as applicable.
1.30. “Termination Payment” shall mean the total of all of the remaining monthly recurring charges from the date of Service termination to the then current Term expiration date, plus any aggregate charges, payable to any third party suppliers for which Zenlayer is or becomes liable in connection with such termination.
2. TERM OF SERVICE; SERVICE ACTIVATION.
2.1. General. Zenlayer, either directly or through its Affiliates, underlying carriers, or Zenlayer-authorized third parties, shall provide Customer with Services as mutually agreed in the applicable SOF. SOF will indicate the Services requested and information reasonably necessary for Zenlayer to provide that Service. By executing the SOF, Customer agrees to accept and pay for the Services specified in the SOF during the Initial Term and for any Renewal Term, as defined below. All Service-related terms and conditions, including its respective service level guarantees, are defined in the appendix, attached hereto and incorporated herein.
2.2.1. Agreement. This Agreement becomes effective on the Effective Date and will remain in full force and effect for three (3) years unless otherwise terminated as permitted by this Agreement. Thereafter, the term of this Agreement shall be automatically renewed for successive one (1) year periods, until one Party notifies the other Party of its intent not to renew in writing no less than thirty (30) days prior to the end of the then-current term.
2.2.2. Service Order Form. Each Service under a SOF will commence on the Service Activation Date and shall continue for the SOF Initial Term and any subsequent SOF Renewal Terms, unless one Party notifies the other Party in writing no less than ninety (90) days prior to the end of a Term that the Party wishes to terminate the SOF.
2.2.3. If the Term of a Service extends beyond the term of this Agreement, then this Agreement shall continue to govern the provisions of the Service under that SOF until the Term of that SOF expires. The termination of any individual Service or SOF will not affect Customer’s previously agreed upon obligation to pay for Services.
2.3. Delivery Confirmation and Acceptance. Once Zenlayer has informed Customer that the ordered Service has been made available by sending the Delivery Confirmation, Customer shall perform tests on the Service (“Acceptance Period”). Zenlayer will issue a SAN with the Service Activation Date to Customer if (a) Customer accepts the Service with a written confirmation, (b) Zenlayer did not receive a notice of claim for Service acceptance issues within the Acceptance Period, or (c) Customer refuse to allow Zenlayer to rectify the acceptance issue.
2.3.1. Delivery Confirmation may be sent via a method agreeable to both Parties, including but not limited to, text messages and social media messengers, such as WeChat and WhatsApp.
2.3.2. Upon receipt of the Delivery Confirmation, Customer shall submit to Zenlayer a notice of claim for any Service-related issue prior to the end of Acceptance Period.
2.3.3. For the specific Acceptance Period of the Services, please refer to the respective product appendix.
3. CUSTOMER OBLIGATIONS.
3.1. Acceptable Use of Services. The Customer guarantees to not misuse, abuse, or fraudulently use of the Services or permit third parties to do so by:
(i) Obtaining or attempting to obtain Services by any means or device with the intent to avoid payment;
(ii) Unauthorized access, alteration, destruction or any attempt thereof, of any information of another Zenlayer customer by any means or device;
(iii) Using Services to impair or interfere with the use of equipment or facilities of Zenlayer, its Affiliates or authorized users, or in violation of the law or in aid of any unlawful act;
(iv) Using Services to send "junk mail" or "spam" through electronic mail or any other means carried by the Internet, notwithstanding their number or length, and having not been duly and specifically requested by the recipient;
(v) Using Services to impair or interfere with the privacy of any communications;
(vi) Using Services to violate the privacy rights of any End User or other individual or data subject for whom Customer controls or processes personal data;
(vii) Infringing on any intellectual property rights of Zenlayer or any other third party;
(viii) Using the Services for the purpose of by-passing government censorship, laws, or regulations, i.e. Chinese laws and regulations, including, but not limited to, Notice of the Ministry of Industry and Information Technology on Cleaning Up and Regulating the Internet Access Service Market;
(ix) Installing pirated or illegal software on Customer or Zenlayer equipment;
(x) Infringing, distributing, hacking into, reverse engineering, disabling security devices or codes, modify, unauthorized access into any of Zenlayer’s or its vendor’s equipment/hardware or software, unauthorized downloading and making copies of Zenlayer’s or Zenlayer’s vendor’s software; or
(xi) Making unauthorized uses, displays, distributions of Zenlayer’s or Zenlayer’s vendor’s materials, documents.
3.2. End User. If Customer is not the end-user of the Services, Customer shall abide by the following:
(i) Customer must obtain prior written consent from Zenlayer before authorizing any third-party (“End Users”) to access, utilize, or control the Services. Zenlayer has the right to refuse consent to provide Services, directly or indirectly, to any third-party in its sole discretion;
(ii) Subject to Section 3.2.(i), the Customer may enter into a contract with its End Users to access, utilize, or control the Services, provided that the terms and conditions of such contract will be no less restrictive than this Agreement and Customer will require its End Users to abide by this Agreement and the applicable policies;
(iii) Customer acknowledges and affirms that Customer is not an agent of Zenlayer. Customer cannot and does not represent Zenlayer in any capacity. Any contract or agreement signed between Customer and its agents, customers, Affiliates, or any third party shall not bind Zenlayer;
(iv) Customer shall not make any representation or statement regarding Zenlayer’s Services other than those contained in Zenlayer’s written marketing literature and promotional materials;
(v) Notwithstanding any contracts or agreements between Customer and its End Users, Customer shall at all times remain fully and primarily responsible and liable for the payment of all Services, compliance with all other obligations under this Agreement, SOF, SLA, and any other attachments, and all claims, obligations, and liabilities arising under this Agreement or SOF and any event of default (except when the breach is solely or majority on the part of Zenlayer);
(i) Customer will provide its End User with documents that Zenlayer may reasonably require for End User to receive the Service, such as a third-party verification form; and
(vi) Customer and its End Users must possess or maintain all licenses, permits, and other requirements that may be applicable to resell or allow third-party use.
3.3. Portal Access.
3.3.1. Customer and End User may utilize the Zenlayer Portal to search for product information and customize their existing or future Services. Customer may use the Zenlayer Portal to view the user(s) attributed to its account. Users may use the Zenlayer Portal to view Service information, including location and bandwidth usage.
3.4. To gain access to the Zenlayer Portal, Customer must submit an application to email@example.com to request a unique log-in information. Upon approval of the application, Zenlayer may issue the unique log-in information to Customer. Zenlayer has sole discretion to determine Customer accessibility to the Zenlayer Portal. Upon receipt of the log-in information, Customer will be fully responsible for the designated username(s) and password(s) issued to it, whether for use by it or its End Users. The username(s) and password(s) are to be kept strictly confidential and only accessed or used by Customer authorized persons.
3.5. A violation of Section 3. by Customer, its Affiliates, agents, representatives, authorized personnel, or End Users shall be deemed a breach of this Agreement and the related SOF. If a breach occurs under this Section, Zenlayer has the right to immediately terminate the related Services, SOF, SLA and Agreement, and seek compensation from the Customer accordingly.
4. ZENLAYER OBLIGATIONS.
4.1. Zenlayer retains the sole discretion as to whether Zenlayer will provide specific Services to Customer. Notwithstanding any terms in this Agreement, Zenlayer is not required to provide Services to Customer, unless and until the SOF is accepted and executed by Zenlayer for Services.
4.2. Zenlayer shall have no obligation to communicate directly with Customer’s End Users.
5. PRICE AND PAYMENT TERMS.
5.1. General. Services shall be invoiced for the amounts pursuant to the SOF. The Charge shall include the Monthly Recurring Charges (“MRC”) and Non-Recurring Charges (“NRC”). Customer will make all undisputed payments on the Due Date unless otherwise agreed to by the Parties in the SOF.
5.2. Commencement of Billing. For the initial and first month’s payment, Zenlayer shall invoice the Customer within three (3) days from SAN. Billing shall commence on the Service Activation Date (“Billing Effective Date”). If Billing Effective Date occurs on a date other than the first day of a calendar month, the initial invoice for MRC shall be prorated to an amount equal to the remaining days of the said month following Service Activation Date multiplied by a rate equal to one-thirtieth (1/30th) of the MRC.
5.3. Minimum Commitment or Per Usage Basis. If applicable, the Services priced on a Minimum Commitment will be charged on a monthly basis in advance. If the Customer has Additional Usage, Zenlayer will invoice Customer in arrears for the Additional Usage at a rate indicated on the SOF. For Services priced on a per usage unit basis, Zenlayer will invoice the Customer in arrears for total usage amount.
5.4. Standard Currency. All monetary references in this Agreement are in United States dollars, and all financial transactions under this Agreement must be settled in United States dollars.
5.5. Past Due. In addition to other remedies set forth under this Agreement, if Customer fails to pay any undisputed amount by the Due Date, Zenlayer may charge daily interest on the unpaid undisputed amount from the Due Date until the date payment is received by Zenlayer at the rate of 1.5% per month or the highest rate permitted by applicable law, whichever is lower. Furthermore, if Zenlayer failed to receive Customer’s payment for the invoiced amount in full on or around the tenth day after the Due Date, Zenlayer shall issue a Past Due Notification to the Customer and initiate its collection process. Zenlayer may suspend the Services if Customer delays payment for the Services for more than thirty (30) days past the Due Date and may terminate the Services if the default is not resolved after five (5) days after the suspension of the Services.
5.6. Billing Dispute. If Customer has any Disputed Amounts, in good faith, in an invoice as described under Section 5.1., Customer shall send an Invoice Dispute Notice at firstname.lastname@example.org of such dispute by the Dispute Date. If Customer does not dispute an invoiced amount within the 10-day period, the invoiced amount shall be deemed accepted by Customer. If Zenlayer receives an Invoice Dispute Notice by the Dispute Date, Customer may withhold the disputed portion, provided the undisputed portion of the payment has been received by Zenlayer per Section 5.1. For a billing dispute the Parties shall follow the dispute procedure set out in Section 12. Nothing herein shall be construed to constitute a waiver of Zenlayer’s right to declare a default by the Customer under this Agreement or SOF on account of a delinquency, to terminate this Agreement, and to exercise any other rights under this Agreement, SOF or at law or in equity.
5.7. Tax and Fees. All MRC and NRC are exclusive of, and Customer will be responsible for all Taxes. Zenlayer shall pass through such Taxes to Customer without markup and must be itemized on invoices. Subject to Zenlayer’s written request, Customer must present a valid exemption certificate of the Taxes withheld by the Customer. Zenlayer shall not charge such exempt Taxes, provided such exemption certificate is valid and current.
5.8. Adjustment of Charges. The Charges during any Term shall be fixed. Pursuant to a Notice of Increase, Zenlayer reserves the right to implement a Charge Increase. A Charge Increase shall not exceed 5% of the Charge of the then-current Term and shall not occur more than once in a calendar year. Notwithstanding anything to the contrary, a Charge Increase will be deemed accepted if (a) the Customer accepts the increase of Charge in writing; (b) the Customer did not reject the affected Service in writing thirty (30) days after the Notice of Increase sent date; or (c) the Customer continues to use the Service into the subsequent Term.
5.9. Banking Fees. In the instances that Zenlayer incurs any banking fees from processing Customer’s Payment through no fault of Zenlayer, Zenlayer will pass to the Customer all banking fees associated with Customer’s Payments. For the avoidance of doubt, each Party shall pay their own wire transfer fees.
6. CONFIDENTIAL INFORMATION; PERSONAL DATA PROTECTION.
6.1. Confidential Information.
6.1.1. The Parties acknowledge and agree that in the course of their duties under this Agreement, may receive or have access to Confidential Information. They agree that they shall comply with the terms and conditions set forth in this Agreement in its collection, receipt, transmission, storage, disposal, use and disclosure of such Confidential Information and be responsible for the unauthorized collection, receipt, transmission, access, storage disposal, use and disclosure of the Confidential Information under its control or in its possession by all authorized persons.
6.1.2. The Recipient must keep secret and confidential the Discloser’s Confidential Information and must not use or disclose, or permit to be disclosed to, or used by, any third party, any of the Discloser’s Confidential Information except as expressly permitted under the terms of this Agreement. The Recipient shall hold such Confidential Information in the same manner the Receiving Party treats its own proprietary or confidential information (but in all events should use at least a reasonable degree of care).
6.1.3. The Recipient may use Discloser’s Confidential Information solely for the purpose of performing its obligations under this Agreement. The Recipient must not disclose any such Confidential Information of the Discloser except as follows: (a) to employees, contractors and financial and legal advisors of Recipient who have a need to know that information for the purpose of facilitating the performance of its obligations under this Agreement and who, prior to disclosure, have agreed to comply with Recipient’s confidentiality obligations hereunder; and (b) advise those representatives given access to such Confidential Information of their obligation with respect to such Confidential Information; (c) not copy or reproduce any of such Confidential Information except to the extent necessary to perform its obligations under the Agreement, or as required by applicable law; and (d) when disclosure is required under applicable law, if Recipient first gives Discloser notice of the required disclosure and cooperates with Discloser, at Discloser’s expense, in seeking reasonable protective arrangements to limit the volume of Confidential Information to be disclosed. However, notwithstanding the foregoing, in no event shall Recipient be required to act in a manner which would violate laws, regulations, or court orders, or result in sanctions or other penalties.
6.1.4. Recipient’s obligations under this Section 6.1 end three (3) years following the termination or expiration of this Agreement.
6.1.5. The Recipient will be primarily liable to Discloser for the compliance of each person described in Section 6.1.3. The Recipient will preserve all proprietary markings on Discloser’s Confidential Information provided to the Recipient. At Discloser’s request, the Recipient will return Confidential Information to Discloser or destroy it and certify its destruction, provided, however, that neither Party shall be required to destroy or return Confidential Information that is contained in an archived computer system in accordance with such Party’s security, backup and/or disaster recovery procedures, or pursuant to regulatory and legal requirements. Any such retained Confidential Information shall remain subject to the confidentiality obligations hereunder.
6.1.6. All information exchanged under this Agreement is provided “AS IS”, without warranty of any kind.
6.1.7. Each Party acknowledges that its breach or threatened breach of this Section 6 may cause the Discloser irreparable harm which would not be adequately compensated by monetary damages. Accordingly, in the event of any such breach or threatened breach, the Recipient agrees that equitable relief, including a temporary or permanent injunction, is an available remedy in addition to any legal remedies to which the Discloser may be entitled.
6.2. Personal Data Protection.
6.2.1. Definition. For purposes of this Section 6.2, Personal Data includes information that identifies or relates to a particular individual or household, including Customer, its End Users or Customer’s customers, including but not limited to name, address, phone number, fax number, email address or IP address which is associated or combined with Customer business information (“Personal Data”).
6.2.2. Customer Compliance. Customer agrees to comply with all applicable “Data Protection Law” (defined as all applicable laws in connection with privacy and the processing, collection, use and protection of personal data in any jurisdiction, including, but not limited to, the General Data Protection Regulation (Regulation (EU) 2016/679) (“GDPR”), the California Consumer Privacy Act (“CCPA”), and all laws concerning the privacy of electronic communications, as amended and updated) with respect to any Personal Data provided to Zenlayer in connection with the Services.
6.2.3. Processing of Personal Data by Zenlayer. Customer hereby acknowledges and agrees that Zenlayer’s performance of the Services may require Zenlayer to process, transmit and/or store the Personal Data of Customer, Customer’s End Users, or Customer’s customers. By providing Personal Data to Zenlayer, Customer agrees that Zenlayer may process, transmit and/or store Customer’s Personal Data to the extent necessary for, and for the purpose of, enabling Zenlayer to perform its obligations under this Agreement. Customer agrees that Zenlayer may use and provide Customer’s Personal Data to third parties for the purpose of provisioning Services ordered by the Customer.
Zenlayer shall take all reasonable steps to protect Personal Data in its possession from unauthorized use, access, disclosure, alteration or destruction. Zenlayer must immediately notify the Customer of any known security breach that has resulted in the unauthorized use, access, disclosure, alteration or destruction of Customer’s Personal Data.
6.2.4. Data Processing Addendum. To the extent that Personal Data is involved in the Services provided and the applicable Data Protection Law requires the execution of supplemental agreements providing additional protections, the Parties agree that such Personal Data shall be subject to a separate Data Processing Addendum that shall be appended to this Agreement.
6.3. Maintenance of Security. Customer shall take all reasonable measures to ensure that the information to be transmitted to or from the servers of Zenlayer in connection with the Services provided to the Customer is secure. Customer shall be solely responsible for authorizing access to any such information in Zenlayer’s possession by its employees and all third parties or End Users. Customer shall require each person having access to the Zenlayer Services to apply/follow all reasonable security and safety measures to protect the information. Zenlayer will not be liable for any action taken by (i) such authorized person on the assets deployed for the Customer, and (ii) individuals who were not authorized to have access to the servers and the Services but who were able to gain access because of the error or omission of the Customer (including inadvertent or direct disclosure of usernames, passwords or account details and other lapses in security by Customer). Customer shall be responsible for all activities that occur under the Customer’s usernames, passwords, or accounts or as a result of Customer’s or its authorized person’s access to the Services. Customer agrees to indemnify and hold harmless Zenlayer for any claims or actions arising out of the breach of this provision by the Customer.
Customer shall not use or permit use of the Services for any purpose that may (a) harass any person or cause damage or injury to any person or property; (b) involve defamatory, harassing, untrue or obscene materials; (c) violate privacy rights or promote hatred or harm; (d) constitute unsolicited bulk e-mail, spam or junk; (e) constitute an infringement of intellectual property or other proprietary rights of a third party, or (f) violate applicable laws, including any Data Protection Law.
The accuracy, veracity, legality or validity of the data or contents provided by the Customer and/or its authorized agent and transmitted to or from the servers of Zenlayer, housed in Zenlayer’s servers and in the database of Zenlayer shall be the exclusive responsibility of Customer. Customer acknowledges that Zenlayer is solely responsible for hosting data and/or information on the Customer’s, its End User’s and/or its authorized representative’s instructions, and any action on such instructions and the result thereof shall be the sole liability of the Customer. Zenlayer shall not be liable for (i) any false and/or inaccurate and/or illegal data transmitted to or from the servers of Zenlayer or housed in Zenlayer servers, and (ii) any outcome and/or result of such processing, transmitting to or from the servers of Zenlayer, housed in Zenlayer servers and in the database of Zenlayer.
6.4. Zenlayer Rights. Without any prejudice to the rights of Zenlayer under this Agreement, Zenlayer reserves the right without any liability whatsoever to the Customer, to take remedial action if any data or content or material violates the restrictions as stated herein, including the removal of or disablement of access to such data or content or material. Customer agrees to indemnify and hold harmless Zenlayer against any claims arising out of a violation of this provision by the Customer.
6.5. Disclosure. Subject to advance written notice to the extent permitted by law, Zenlayer may provide any information as required to any receiver or governmental or quasi-governmental entity, or to any person or entity with a valid court order. Notwithstanding anything contained in this Section 6., Zenlayer may release Confidential Information and Personal Data, to the extent necessary, to a third party for the purpose of providing Services to the Customer, performing the obligations contemplated under this Agreement, collecting delinquent payments, or reclaiming tax. Only to the extent that there is a conflict between this Section 6.5. and the terms in any mutual nondisclosure agreement signed between the Parties, this Section 6.5. shall prevail over any conflicting terms contained in the mutual nondisclosure agreement.
6.6. Feedback and Suggestions. Customer’s feedback and suggestions regarding the Services, their improvement, enhancements, or byproducts shall not constitute Customer’s Confidential Information. Customer acknowledges and accepts that Zenlayer may use such feedback and suggestions in any way without payment of royalty or any other consideration to the Customer.
7. WARRANTY AND DISCLAIMER.
7.1. WARRANTY. ZENLAYER WARRANTS THAT IT HAS ALL THE REQUISITE CONSENT LICENSES AND CAPACITY TO PROVIDE THE SERVICES AND IT WILL DELIVER THE SERVICES USING THE REASONABLE SKILL AND CARE OF A COMPETENT SERVICE PROVIDER.
7.2. DISCLAIMER. THE SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS. ZENLAYER DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED. NO ADVICE, INFORMATION, OR EXPECTATION, WHETHER ORAL OR WRITTEN, OBTAINED BY THE CUSTOMER OR ITS END USERS THROUGH USE OF THE SERVICE(S) SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE IN THIS AGREEMENT. ZENLAYER MAKES NO WARRANTY THAT THE SERVICES WILL MEET THE CUSTOMER REQUIREMENTS, OR THAT THE SERVICE(S) WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. ZENLAYER MAKES NO WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM THE USE OF THE SERVICES. ZENLAYER DOES NOT WARRANT THAT THE SERVICES ARE FREE FROM ANY RIGHTFUL INFRINGEMENT CLAIM.
7.3. Customer will not extend any warranties or guarantees with respect to the Services in the name of Zenlayer, without the written pre-approval of Zenlayer, with respect to the performance, design, quality, merchantability, or fitness for a particular purpose of the Services. The use of any information or data obtained through the Services is at the Customer and its End Users’ sole risk.
7.4. Representation of Authority. Each Party warrants and represents that: (i) it has the legal right to enter into, and perform its obligations in, this Agreement; (ii) the performance of its obligation under this Agreement will not violate any applicable laws or regulations or cause a breach of any rights of third parties; and (iii) the person who executes this Agreement, or any SOF, SLA, or attachments to this Agreement is authorized to do so.
7.5. Compliance with Law. Customer warrants and represents that (i) Customer will comply with all applicable laws and regulations; (ii) Customer will be responsible for obtaining and maintaining all necessary licenses, permits, and approvals required by any and all governmental authorities to provide the Services to its End Users and comply with its obligations under this Agreement; and (iii) the use of Services by Customer will be in accordance with such licenses, permits, and approvals.
7.6. Ethics and Code of Conduct. Each Party will conduct all their dealings in an ethical manner and with the highest business standards.
7.6.1. The Parties will provide all possible assistance to each other in order to investigate any possible instance of unethical behavior or business conduct violations by an employee of the other. Each Party will forthwith disclose any breach of these provisions that comes to its knowledge to allow for timely action in the prevention and detection of unethical behavior.
7.6.2. Each Party will adopt appropriate processes to prevent offering of any illegal gratification in the form of bribes or kickbacks either in cash or in kind in the course of all dealings with Zenlayer.
7.7. Violation of Warranty and Representation. If the Customer breaches any of the warranties or representations in this Agreement or the obligations under Sections 3.1, 3.2, 7.4, 7.5, and 7.6 above, or if Zenlayer receives a court- or government-ordered suspension or termination, Zenlayer may immediately terminate or suspend this Agreement, SOF, or any Services immediately without notice.
8. LIMITATION OF LIABILITY.
8.1. ZENLAYER DOES NOT MONITOR AND DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR THE CONTENT OF ANY COMMUNICATIONS TRANSMITTED VIA A SERVICE AND DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR UNAUTHORIZED USE, INFRINGEMENT, ILLEGAL, OR MISUSE OF ANY SERVICE. CUSTOMER SHALL BE SOLELY LIABLE AND RESPONSIBLE FOR THE CONTENT OF ANY COMMUNICATIONS TRANSMITTED VIA AN APPLICABLE SERVICE.
8.2. EXCEPT AS OTHERWISE STATED IN THIS AGREEMENT, IN NO EVENT, REGARDLESS WHETHER IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR WHETHER THE DAMAGES ARE FORESEEABLE BY THE PARTY, NEITHER PARTY SHALL BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, INDIRECT, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE (EXCEPT THAT CUSTOMER SHALL BE LIABLE FOR ANY SERVICE FEE OR OTHER AMOUNT OWED TO ZENLAYER UNDER THIS AGREEMENT), LOSS OF PROFIT, LOSS OF DATA OR INTERRUPTION OR CORRUPTION OF DATA, OR LOSS OF BUSINESS.
8.3. EACH PARTY’S LIABILITY FOR ALL CLAIMS OF ANY KIND ARISING OUT OF OR RELATING TO THIS AGREEMENT, EXCEPT FOR EARLY TERMINATION FOR CONVENIENCE (SEE SECTION 11.5.), CUSTOMER INDEMNIFICATION (SEE SECTION 9.2.) AND SERVICE LEVEL CREDITS (SEE THE RESPECTIVE PRODUCT APPENDIX), SHALL NOT EXCEED THE AMOUNT PAID OR PAYABLE BY CUSTOMER TO ZENLAYER DURING THE TWELVE (12) MONTHS PRECEDING THE DATE OF THE CAUSE OF ACTION.
8.4. ZENLAYER WILL UNDER NO CIRCUMSTANCES BE LIABLE FOR ANY DAMAGES ATTRIBUTABLE TO ANY SERVICE, PRODUCT, OR ACTION OF ANY PERSON OTHER THAN ZENLAYER AND ITS EMPLOYEES.
8.5. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, ZENLAYER SHALL HAVE NO LIABILITY WHATSOEVER FOR CLAIMS THAT ARISE DURING A SERVICE TRIAL OR ACCEPTANCE PERIOD.
9.1. Zenlayer Indemnification. Zenlayer shall indemnify, defend and hold Customer harmless from and against any and all claim, suits, actions, or proceedings (each, an “Action”) brought by any third party against Customer to the extent the Action alleges bodily injury or property damage that arises out of or caused by the gross negligence or willful misconduct of Zenlayer relating to the Agreement or Services hereunder.
9.2. Customer Indemnification. Customer shall indemnify, defend, and hold Zenlayer, and its Affiliates, harmless from and against any costs, liabilities, losses, and expenses, including, but not limited to; reasonable attorney’s fees and costs (collectively, “Losses”) resulting from or arising out of any claim, suit, action, or proceeding brought against Zenlayer or its Affiliates alleging, (a) with respect to Customer’s business and its End Users, (i) infringement or misappropriation of any intellectual property rights, (ii) defamation, libel, slander, obscenity, pornography, or violation of the rights of privacy or publicity, (iii) violation of any applicable Data Protection Law, or (iv) spamming, or other offensive, harassing, or illegal conduct or violation of rules and regulations; (b) any damage or destruction to the colocation space or Zenlayer equipment by Customer or its End Users, representatives, contractors, or sub-contractors; or (c) any other damages, liabilities, or Losses arising from Customer Equipment, Customer’s business, Customer’s breach of this Agreement, or Customer’s negligence or misconduct. The Customer also agrees to defend and indemnify Zenlayer’s vendors for any claims arising out of Customer’s or its End User’s use of the Zenlayer’s vendor-provided services, provided that the vendor is not at fault.
9.3. Notice. Each Party’s indemnification obligations in this Agreement shall be subject to (i) receiving prompt written notice of the existence of any Action; (ii) being able to, at its option, control the defense of such Action; (iii) permitting the Indemnified Party to participate in the defense of any Action at its own expenses; and (iv) receiving reasonable cooperation of the Indemnified Party in the defense thereof. Notwithstanding the foregoing, neither Party may settle any Action against the other Party without that party’s prior written consent.
10. OPERATIONAL MATTERS.
10.1. Security. Zenlayer is not liable for the security of Customer’s services, connections, or traffic, and has no obligations to ensure and makes no representation or warranties concerning the security of such Services, including but not limited to; communications, connections, or traffic.
10.2. Content. Zenlayer shall have no liability or responsibility for the content of any communications transmitted via the Service. Customer agrees that it shall make no claim whatsoever against Zenlayer relating to the content of the Internet or respecting any information, product, service or software ordered through or provided by the Internet. Customer shall indemnify Zenlayer for any liability that arises from the content of the Internet as used by Customer and its End Users.
10.3. Service Level Agreement. Zenlayer agrees to provide the Services to Customer in accordance with the SLA. In the event of an interruption in Service (“Service Outage”), Customer shall be entitled to a credit under the applicable SLA. The SLA provides the sole remedy for service interruption or service problems for that Service. Under no circumstances shall a Service Outage be deemed a default under this Agreement or any SOF.
10.4. Maintenance. Zenlayer may suspend Services during the maintenance or update of its network. In the event of routine, planned maintenance, Zenlayer will provide Customer with reasonable prior notice. For emergency maintenance, Zenlayer will provide as much notice as is practicable under the circumstances. In all cases, Zenlayer will work with Customer to minimize disruptions to the Service. Under no circumstances, will any planned interruption or routine maintenance be considered a Service Outage. Such maintenance is not entitled to any credits unless stated otherwise in the SLA.
11. SUSPENSION; TERMINATION.
11.1. General. Zenlayer processes all Service terminations at the end of each calendar month. Except when Customer invoking its rights under Section 11.4. to terminate a Service, Customer shall pay Zenlayer the Termination Payment. The Termination Payment shall become due immediately upon termination. Customer agrees that Zenlayer’s damages will be difficult to ascertain if termination occurs and that the Termination Payment establishes liquidated damages and is not a penalty.
11.2. Failure to Pay. Zenlayer, without prejudice to its other rights at law or in equity, may suspend or terminate this Agreement or any Service immediately and without further notice, if Customer is in default in the payment of any invoiced amount due and has failed to remedy such default after Customer’s receipt of Past Due Notice from the Zenlayer. After such termination, Zenlayer may dispose of Customer’s equipment immediately, or immediately take possession of the leased Zenlayer equipment. Customer shall be solely liable and responsible for all damages caused by such termination.
11.3. Temporary Suspension of Services Without Prior Notice. Customer agrees and accepts that Zenlayer shall be entitled to suspend Services without prior notice in circumstances such as: (i) the Zenlayer data center being affected by viruses/malware; (ii) “Network flooding” or “DDOS” attacks at Zenlayer premises or on Zenlayer servers; (iii) faulty hardware at Zenlayer’s data centers; (iv) the Services being used by the Customer in violation of the terms and conditions in this Agreement, the SOF, the SLA or any Data Protection Addendum; (v) to protect the servers maintained by Zenlayer in the event of a threat of breakdown or where there is valid reason to believe that not suspending the Services would cause loss to other customers of Zenlayer; (vi) in cases where suspension is required by law; or (vii) in such other circumstances as Zenlayer may reasonably determine. Zenlayer shall inform Customer as soon as possible of any suspension under this Section.
11.4. Termination for Cause. Except for Section 11.2. and 11.3., either party may immediately terminate this Agreement, any Service or SOF by written notice to the other Party if: (i) the other Party breaches any material term or condition of this Agreement (including but not limited to Section 3., 7.4., and 7.5.) or SOF and fails to cure such breach within thirty (30) days after receipt of written notice of the same; (ii) the other Party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing; or (iii) the other Party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing.
11.5. Termination for Convenience. Subject to Section 11.1., Customer may terminate a Service prior to the natural expiration of its Term for any reason with at least thirty (30) days’ prior written notice.
11.6. Effect of Termination. Upon the effective date of termination of this Agreement or any Service: (i) Zenlayer will immediately cease providing all applicable Services; and (ii) Zenlayer may immediately invoice Customer for any and all payment obligations under this Agreement for Services provided up to the date of termination and Customer shall remain liable for all amounts currently and previously invoiced.
11.7. Reinstatement of Service. If the Service was suspended or terminated due to reasons listed under 7.6., 11.1., 11.2., 11.3., or 11.4., Zenlayer has the sole discretion to determine whether to reinstate the suspended or terminated Service if requested by Customer. If a Service is to be reinstated, the Customer shall bear all costs associated with reinstating the Services.
12. DISPUTE RESOLUTION.
The Parties agree that they shall first endeavor to settle amicably by mutual discussions any disputes, differences, or claims arising out of or in connection with this Agreement, SOF, SLA, or any non-disclosure agreements related to the Services through a designated senior executive from each Party. If the senior executives fail to resolve the issue within thirty (30) days of a request from one Party, each Party may seek all remedies available at law or equity. The Parties agree that all disputes arising out of or in connection with this Agreement, SOF, SLA, or any non-disclosure agreements related to the Services shall be brought and maintained only in a court of competent jurisdiction located in the county of Los Angeles, California, USA. The Parties each consent to the jurisdiction and venue of such courts and waive any right to object to such jurisdiction and venue. Notwithstanding anything to the contrary herein, if Customer is a non-U.S. entity, the Parties agree that all disputes arising out of or in connection with this Agreement, SOF, SLA, or any non-disclosure agreements related to the Services shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by a single arbitrator with the said rules in Los Angeles, California. The language of the arbitration shall be English. Each party shall be responsible for their own arbitration fees.
13. MISCELLANEOUS PROVISIONS.
13.1. Force Majeure. Except for the obligation to pay for the Services already rendered by Zenlayer, neither Party will be liable for any failure or delay in its performance under this Agreement or any SOF due to any cause beyond its reasonable control, including acts of war, acts of God, terrorism, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, unforeseen technical or utility failure, governmental act, or failure of the Internet (not resulting from the actions or omissions of Zenlayer), provided that the delayed Party: (a) gives the other Party prompt notice of such cause, and (b) uses its reasonable commercial efforts to promptly correct such failure or delay in performance.
13.2. Intellectual Property. All legal and beneficial rights in Zenlayer’s Intellectual Property which Zenlayer provides to Customer for the purposes of using the Service(s) will remain at all times the property and rights of Zenlayer. Zenlayer grants Customer a non-exclusive, non-transferrable license to use such Intellectual Property for the sole purpose of using the Service(s) as contemplated in this Agreement. The Customer shall not reproduce, modify, adapt, translate, reverse engineer, or disassemble any software, Service, or any part of Zenlayer’s Intellectual Property.
13.3. Marketing. Zenlayer may refer to Customer or Customer’s logo for promotional and marketing purposes. This reference will be strictly limited to disclosure that Zenlayer has provided Services to the Customer and will not contain any confidential or proprietary information in such a reference.
13.4. No Third-Party Beneficiaries. Zenlayer and Customer agree that, except as otherwise expressly provided in this Agreement, there shall be no third-party beneficiaries to this Agreement, including but not limited to the insurance providers for each Party or the End User of the Customer.
13.5. Governing Law. This Agreement shall be construed and controlled by the law of the State of California, U.S.A., without regard to conflict of law provisions.
13.6. Legal Compliance. Each Party represents and warrants that (i) it is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) it is not listed on any U.S. Government list of prohibited or restricted parties, including the Entity List, and (iii) it is not listed as a prohibited or restricted party in any of the territories in which services under this Agreement are to be delivered.
13.7. Anti-Bribery and Anti-Corruption. Each Party shall comply with all applicable laws and regulations on bribery, corruption, and prohibited business practices. Subject to all applicable laws, each Party has not and shall not offer, promise, make or agree to make any payments or gifts directly or indirectly to anyone for the purpose of improperly influencing, or inducing anyone to influence decisions in favor of the other Party or any of its subsidiaries or affiliates. Any breach or violation of this Subsection by either Party will be grounds for immediate termination of this Agreement by the non-breaching Party.
13.8. Non-Disparagement. The Customer hereby acknowledge and agrees that it will not and will ensure that its representatives, employees, agents, contractors, associates, etc. do not in any form or manner carry out disparagement, negative characterization, defamation, and/or any adverse public criticism of the Services, or question the business, integrity, veracity, or personal or professional reputation of Zenlayer.
13.9. Non-Solicitation. Neither Party shall, without the written permission of the other Party, directly solicit, induce, hire, recruit, make an offer of employment or engagement to or encourage any personnel of the other Party to leave their employment, or take away such personnel during the term of this Agreement and for twelve (12) months thereafter.
13.10. Severability; Waiver. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to the law, then the remaining provisions of this Agreement will remain in full force and effect. The failure or delay on the part of Zenlayer to exercise any right, power or privilege hereunder shall not operate as a waiver thereof.
13.11. Assignment. Neither Party shall assign, transfer, license or otherwise transfer all or any material part of its rights or duties or other interests in this Agreement or the proceeds thereof, without the other Party’s prior written consent, which shall not be unreasonably withheld or delayed.
13.12. The Relationship of Parties. Zenlayer and Customer are independent contractors, and this Agreement will not establish any relationship of joint venture, employment, franchise or agency between Zenlayer and Customer. Customer may not enter into any agreement on behalf of Zenlayer.
13.13. Entire Agreement; Counterparts; Originals. This Agreement, SLA, Appendices, and all properly executed SOF are incorporated herein by reference and constitutes the complete and exclusive agreement between the Parties concerning the subject matter hereof, and supersedes and replaces any prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter. This Agreement and any SOF may be executed in one or more counterparts, whether by original, photocopy, electronically, scanned and emailed, or facsimile, each of which shall constitute an original, but all of which shall constitute the same instrument.
13.14. Modifications and Amendment. This Agreement may be changed or modified only by a written document signed by authorized representatives of both Zenlayer and Customer.
13.15. Survival. Provisions contained in this Agreement that are intended to survive completion, performance, termination, suspension, cancellation, or expiration of this Agreement (including, but not limited to, the non-disclosure agreement, indemnification, limitation of liability terms and conditions) shall survive.
13.16. Headings. The clause headings contained herein are for convenience and are not to be used in its interpretation.
13.17. Notification of Substantial Change. Customer shall notify Zenlayer of any substantial change to Customer’s business, including but not limited to a change of entity name.
13.18. Notice. Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, sent by e-mail (with proof of receipt or delivery via electronic logs), or United States certified mail, return receipt requested, to the address set forth below or at such other address as may hereafter be furnished in writing by each Party to the other Party.
All notices to Zenlayer shall be addressed to the following:
21680 Gateway Center Drive, Suite 350
Diamond Bar, California 91765
Attention: Legal Affairs
All notices to Customer shall be addressed to the information provided on Zenlayer Portal.
13.19. Delivery; Signature. Zenlayer and Customer both consent, and agree to accept, the use of electronic signatures and the emailing or faxing of the executed Agreement, SLA, SOF, or any other attachments relating to the Services provided to the Customer. Furthermore, Zenlayer and Customer agree that an electronic signature, scanned and emailed, or faxed signature shall have identical weight to an original handwritten signature.
13.20. Execution and Conflict of Terms. In the event of a conflict between the terms and provisions of this Agreement, and the terms and provisions of the accompanying Appendices, and the SOF, the SOF shall prevail, followed by Appendices, and then this Agreement.